Enforcement of foreign awards under Section 48 bars merits re-review; tribunal findings on deemed acceptance, contract validity via past dealings upheld unless perverse; ad-hoc agreement overrides rule conflicts, conferring merits jurisdiction.

JUDGMENT :

Somasekhar Sundaresan, J.

Context and Factual Background:

1. Commercial Arbitration Petition No. 441 of 2017 is a petition filed under Part II of the Arbitration and Conciliation Act, 1996 (“the Act”), seeking recognition and enforcement of five foreign arbitral awards (“Foreign Awards”) in which the Petitioner, Trammo DMCC (“Trammo”), is the judgement creditor while the judgement debtor is the Respondent, Nagarjuna Fertilizers and Chemicals Ltd. (“Nagarjuna”), a company whose shares are listed on Indian Stock Exchange.

2. The Foreign Awards are :- i) First Interim Final Award dated December 4, 2015 (“First Award”), as amended on July 4, 2016; ii) First Cost Award dated February 5, 2016 (“First Cost Award”), as amended on July 4, 2016. iii) Costs of Costs Award dated March 10, 2016 (“Second Cost Award”), as amended on July 4, 2016; iv) Second Interim Final Award dated September 20, 2016 (“Second Award”); and v) Third Interim Final Award dated December 14, 2016 (“Third Award”).

3. The Learned Arbitral Tribunal that passed the Foreign Awards was an ad-hoc Arbitral Tribunal seated in London. The Learned Arbitral Tribunal was constituted by the parties with Trammo’s nominee, Sir Simon Tuckey, a former Judge of the Court of Appeal; Nagarjuna’s nominee Lord Collins, a former Justice of the Supreme Court of England and Wales; and Sir Mark Waller, a former Judge of the Court of Appeal, acting as the Presiding Arbitrator. The ad-hoc arbitration agreement between the parties is dated January 21, 2014 (“Arbitration Agreement”), by which the parties agreed to form the Arbitral Tribunal.

4. It would be appropriate to summarise the relevant history to the Arbitration Agreement and the formation of the Learned Arbitral Tribunal as follows:

A) Between April 2011 and January 2012, Trammo and Nagarjuna entered into various spot contracts for supply of two types of fertilizer, namely Di-Ammonium Phosphate (“DAP”) and Nitrogen Phosphorus Sulphate (“NPS”). Each spot contract would be backed by confirmation notes and agreements being executed through correspondence, containing the main terms of supply, such as the identification of the product, quantity, and price. In each case, the communications exchanged between the parties would be supplemented by written confirmations with more detailed terms being executed between the parties;

B) Between April 12, 2012 and February 2013, the parties entered into a long-term contract. The general terms and conditions appended to that contract provided that disputes between the parties would be referred to arbitration in London under the Rules of the London Court of International Arbitration (“LCIA”);

C) On May 17, 2013, representatives of Trammo and Nagarjuna met in Dubai and wrote down by hand an instrument indicating the essential terms of supply of DAP and NPS by Trammo to Nagarjuna. Trammo claims that during this meeting, it was orally agreed that the general terms and conditions last used by the parties in the long-term contract would apply (“Dubai Claimed Contracts”);

D) On May 27, 2013, Trammo sent an email to Nagarjuna, attaching thre